Tuesday, January 24, 2006

Roe Your Boat Gently Down a Stream...

Another year, another anniversary of Roe V. Wade, which to listen to some pundits was one of the highwater marks in the history of Western jurisprudence. More and more, however, Roe supporters are sensing that the 1973 Supreme Court decision is vulnerable. The likely confirmation of Samuel Alito to the Court has spurred ominous reflection regarding federal abortion protection. From yesterday's New York Times:

There is every reason to believe, based on his long paper trail and the evasive answers he gave at his hearings, that Judge Alito would quickly vote to overturn Roe v. Wade. So it is hard to see how Senators Lincoln Chaffee, Olympia Snowe and Susan Collins, all Republicans, could square support for Judge Alito with their commitment to abortion rights.Translation: "Moderate Republicans, you're our only hope!" As an aside, I enjoyed the notion here that Alito "would quickly vote" to overturn Roe. The inclusion of the word "quickly" is meant to imply not only a lack of thoughtful deliberation but the rashness of a trigger-happy activist. Never mind the fact that a majority of Americans favor at least some restrictions on abortion, raising questions about how one defines terms like "mainstream" and "extreme." Never mind the fact that overturning Roe would not end abortion as we know it, but would return the matter to the states. The New York Times wants you to feel the fear of far right extremity (or as Matt Lauer may put it: "ultraconservative") lest anyone conclude that the abortion question may transcend a simple right vs. left political continuum. No, apparently any hesitation about abortion leaves you in the exclusive domain of the radical right, led by their cold, calculating Alitos ("In the same flat bureaucratic tones he used at the hearings"...this entire piece is a parser's delight).

To be fair, the Times did print an editorial by Slate's Will Saletan in which he offers a different take on abortion rights. He begins with this attention-getting premise: It's time for the abortion-rights movement to declare war on abortion. Saletan acknowledges an awkard reality with which the pro-choice movement needs to reckon: most Americans are starting to recognize that killing fetuses is bad. The failure to deal with the moral question explains the erosion of abortion rights, according to Saletan. To save those rights, he argues, the moral question must be addressed and a real educational effort must be made to reduce abortions. Here is the crux of his argument:

The lesson of those decades is that you can't eliminate the moral question by ignoring it. To eliminate it, you have to agree on it: Abortion is bad, and the ideal number of abortions is zero. But by conceding that, you don't end the debate, you narrow it. Once you agree that the goal is fewer abortions, the only thing left to debate is how to get there. As a politician might put it: "My opponent and I are both pro-life. We want to avoid as many abortions as we can. The difference is, I trust women to work with me toward that objective, and he doesn't."

Saletan's editorial provoked a response from Ross Douthat at his excellent blog, The American Scene. Douthat grants that there is political wisdom in Saletan's advice but argues that as policy, it is nothing more than "sound and fury and condoms." The problem, Douthat argues, is that Roe v. Wade is a significant part of the "tapestry" that produces the culture of "sexual irresponsibility"--a culture Saletan wants to address through sex education. Saletan's approach is the equivalent of a "band-aid on a bullet wound." Therefore, Douthat argues, shouldn't Roe be on the table of options? Read further for Douthat's thoughtful discussion of incentives and restrictions.

It does feel like there has been a shift in American public life on the abortion question during the last 10-15 years. Let's not underestimate the role prenatal technology has played in causing a cultural rethinking of the abortion question (As a recent father, I can attest to the power and wonder of seeing a life living, moving, and breathing in the womb via the ultrasound.) But for now, I'd like to note one of many other factors: the sustained resilience and increasing recognition of pro-life Democrats. The removal of Robert Casey as a speaker at the 1992 Democratic Convention symbolically captured the intolerance of the party to any diversity of opinion on the issue.** But failing to win a majority of the popular vote for almost three decades has caused some Democrats, including Hillary Clinton, to realize that the Left may have overextended on this one. Moreover, groups such as Democrats for Life prove that the ideological polarization embraced by The New York Times is not the best paradigm to capture the abortion debate. DFL appeals to Democratic values in making the case that concern for the unborn is consistent with other concerns regarding human dignity and social justice.

Overturning Roe won't end abortion as we know it. Fierce political battles will live on as abortion is decided at the state level and as the Left strives to regain control over the courts. But if Roe is overturned, it won't be the mere result of power politics. The reality is that a reversal has become more plausible. A majority of citizens find what actually happens during abortion increasingly difficult to accept.

**There has been some dispute (and revision) about whether Casey was forbidden to speak because of his pro-life views or because of a refusal to endorse the Clinton-Gore ticket. It has been argued that other pro-lifers were allowed to speak that year and other years. The difference, however, is that Casey was going to speak on the abortion issue, challenging his party to rethink their position and stand for the "powerless." Casey's own account of the maneuvering and antics at the convention is persuasive enough, in my view, to sustain the original interpretation.